LEGAL ISSUE: Whether the High Court was correct in upholding the charges framed by the trial court against the accused under Section 227 of the Code of Criminal Procedure, 1973.
CASE TYPE: Criminal Law, Unlawful Activities (Prevention) Act, 1967
Case Name: Asim Shariff vs. National Investigation Agency
[Judgment Date]: July 1, 2019
Introduction
Date of the Judgment: July 1, 2019
Citation: Not Available in Source
Judges: A.M. Khanwilkar, J., Ajay Rastogi, J. (authored the judgment).
Can an individual be charged with serious offenses, including those under the Unlawful Activities (Prevention) Act, 1967, based on alleged involvement in a conspiracy? The Supreme Court of India addressed this question in a case involving the murder of an RSS member, where the accused, a member of the Popular Front of India (PFI), sought to be discharged from the charges. The Court examined whether there was sufficient evidence to proceed with a trial against the accused, upholding the High Court’s decision to frame charges.
Case Background
On October 16, 2016, a complaint was filed by Jayaram (CW-1) stating that his friend Rudresh was attacked with a machete by a motorcycle pillion rider near Srinivas Medical Stores, Shivajinagar. Rudresh was declared brought dead at the hospital. Initially, four individuals (Accused nos. 1 to 4) were arrested on October 27, 2016. The appellant, Asim Shariff (Accused no. 5), was arrested on November 2, 2016.
The investigation was later transferred to the National Investigation Agency (NIA) on December 7, 2016. The NIA registered a case against all five accused, including the appellant. The charge sheet submitted on April 21, 2017, stated that Accused nos. 1 to 4 conspired with the appellant to kill RSS members. The accused were also charged under the Arms Act and the Unlawful Activities (Prevention) Act, 1967 (UAP Act).
Timeline
| Date | Event |
|---|---|
| October 16, 2016 | Rudresh is murdered near Srinivas Medical Stores, Shivajinagar. |
| October 27, 2016 | Accused nos. 1 to 4 are arrested. |
| November 2, 2016 | Accused no. 5 (appellant) is arrested. |
| December 7, 2016 | Investigation transferred to the National Investigation Agency (NIA). |
| April 21, 2017 | Charge sheet submitted against all five accused. |
| January 2, 2018 | Trial Court dismisses the discharge application of the accused. |
| November 22, 2018 | High Court dismisses the writ petition filed by the accused. |
| July 1, 2019 | Supreme Court dismisses the appeal. |
Course of Proceedings
The appellant filed an application under Section 227 of the Code of Criminal Procedure, 1973 (CrPC) seeking discharge from the case. The trial court/Special Judge dismissed the application on January 2, 2018, and ordered the framing of charges against the appellant for offenses under the Indian Penal Code (IPC), Arms Act, and UAP Act.
The appellant challenged this order in a writ petition under Articles 226 and 227 of the Constitution of India, read with Section 482 of the CrPC. The High Court dismissed the writ petition on November 22, 2018, upholding the trial court’s decision.
Legal Framework
The accused were charged under the following legal provisions:
- ✓ Sections 120-B (criminal conspiracy), 109 (abetment), 150 (hiring persons for unlawful assembly), 153A (promoting enmity between different groups), 302 (murder), and 201 (causing disappearance of evidence) read with Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (IPC).
- ✓ Sections 3 and 27 of the Arms Act (related to possession and use of illegal weapons).
- ✓ Sections 15 (terrorist act), 16 (punishment for terrorist act), 17 (raising funds for terrorist act), 18 (conspiracy for terrorist act), and 20 (being member of terrorist gang or organisation) of the Unlawful Activities (Prevention) Act, 1967 (UAP Act).
The Unlawful Activities (Prevention) Act, 1967, aims to prevent unlawful activities and terrorist acts. Section 15 of the UAP Act defines a ‘terrorist act’ as any act done with the intent to threaten the unity, integrity, security, or sovereignty of India, or to strike terror in the people.
Arguments
Appellant’s Submissions:
- ✓ The prosecution failed to produce any evidence against the appellant. Witnesses CW 1 to 53, 55 to 76, 78 to 86, 86 to 92, 94 to 96, and 98 to 112 did not implicate the appellant.
- ✓ Other witnesses relied upon by the prosecution only provided information like bank account details and call data records, which do not disclose any incriminating material against the appellant.
- ✓ The charge against the appellant is without basis and merely based on suspicion, with no evidence to prove that he was the main conspirator behind the murder.
- ✓ The allegation that the appellant planned the conspiracy with other PFI members to kill RSS members is concocted and without substance.
- ✓ The incident was alleged to have been planned on the last day of Navaratri, but Navaratri was already over on the said date.
- ✓ None of the accused are members of any terrorist organization banned under the schedule of the UAP Act, therefore, the invocation of the UAP Act is not sustainable.
Respondent’s Submissions:
- ✓ Section 15 of the UAP Act covers both individual acts and acts of a terrorist gang/association. Section 20 does not require an association to be included in the schedule for punishing a terrorist act.
- ✓ The murder was a brutal attack, with the deceased’s throat slit in a single blow, intended to create fear and insecurity among the people.
- ✓ The appellant is the District President of PFI, which has been involved in killings of several RSS members/Hindu leaders in Karnataka.
- ✓ A banner dated December 12, 2016, bore the names and photographs of all the accused, including the appellant.
- ✓ There were several telephone exchanges between Accused nos. 1 to 4 and the appellant.
- ✓ A disclosure report dated November 4, 2016, revealed a letter written by Accused no. 4 found at the appellant’s office, which listed 17 murders committed by PFI and questioned why the murder of Rudresh had attracted so much attention.
- ✓ Investigation revealed that all the accused had attended indoctrination classes organized by the appellant and other members, where they were recruited and brainwashed to kill RSS members.
- ✓ Accused no. 4 confessed that the appellant was the mastermind behind the killing of RSS members.
| Main Submission | Appellant’s Sub-Submissions | Respondent’s Sub-Submissions |
|---|---|---|
| Lack of Evidence |
✓ No direct evidence from witnesses. ✓ Only circumstantial evidence like call records and bank details. ✓ No proof of conspiracy or planning. |
✓ Appellant is PFI District President. ✓ Banner with accused’s photos. ✓ Frequent phone calls between accused. ✓ Letter found at appellant’s office listing PFI murders. ✓ Indoctrination classes organized by appellant. ✓ Accused no. 4’s confession. |
| Incorrect Application of UAP Act |
✓ Accused not members of banned terrorist organizations. ✓ UAP Act not applicable in this case. |
✓ Section 15 of UAP Act covers individual acts. ✓ Section 20 does not require scheduled organization for terrorist act. |
| Factual Inaccuracies | ✓ Incident not on last day of Navaratri. | ✓ Murder was brutal and intended to create fear. |
Issues Framed by the Supreme Court
The Supreme Court considered the following issues:
- Whether the trial court was correct in dismissing the discharge application filed by the appellant under Section 227 of the Code of Criminal Procedure, 1973.
- Whether the High Court was correct in upholding the order of the trial court for framing of charges against the appellant.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Reason |
|---|---|---|
| Whether the trial court was correct in dismissing the discharge application filed by the appellant under Section 227 of the Code of Criminal Procedure, 1973. | Upheld | The trial court had sufficient grounds to believe that there was a prima facie case against the appellant based on the material placed on record. |
| Whether the High Court was correct in upholding the order of the trial court for framing of charges against the appellant. | Upheld | The High Court correctly analyzed the material on record and confirmed the trial court’s view that a prima facie case was made out against the appellant. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was used |
|---|---|---|
| Union of India vs. Prafulla Kumar Samal & Ors. [1979(3) SCC 4] | Supreme Court of India | Explained the scope of Section 227 of the CrPC, stating that the judge must exercise judicial mind to determine if a case for trial has been made out. |
| Sajjan Kumar vs. Central Bureau of Investigation [2010(9) SCC 368] | Supreme Court of India | Further explained the principles for considering charges under Sections 227 and 228 of the CrPC, including the power to sift evidence and frame charges if there is grave suspicion. |
| State vs. S. Selvi and Ors. [2018(13) SCC 455] | Supreme Court of India | Reiterated the principles for considering discharge applications under Section 227 CrPC. |
| Vikram Johar vs. State of Uttar Pradesh and Ors. [2019(6) SCALE 794] | Supreme Court of India | Reiterated the principles for considering discharge applications under Section 227 CrPC. |
| Section 227 of the Code of Criminal Procedure, 1973 | Statute | The provision under which the discharge application was filed by the accused. |
| Section 15 of the Unlawful Activities (Prevention) Act, 1967 | Statute | Defines ‘terrorist act’ and was used to determine if the act of the accused was a terrorist act. |
| Section 20 of the Unlawful Activities (Prevention) Act, 1967 | Statute | Used to determine if it was necessary for an organization to be included in the schedule for punishing a terrorist act. |
Judgment
| Submission by Parties | How the Court Treated the Submission |
|---|---|
| Appellant’s submission that prosecution failed to produce evidence and witnesses did not implicate him. | Rejected. The court noted that the charge sheet and material on record revealed that the appellant was the President of the Bengaluru unit of PFI, and there were frequent telephonic conversations between him and other accused persons before and after the incident. |
| Appellant’s submission that the charge was based on suspicion and not evidence. | Rejected. The court found that there was a prima facie material of conspiracy among the accused persons. The truth and veracity of such conspiracy is to be examined during the course of trial. |
| Appellant’s submission that the UAP Act was not applicable as the accused were not members of any banned terrorist organization. | Rejected. The court noted that Section 15 of UAP Act covers both individual acts and acts of a terrorist gang/association, and Section 20 does not require an association to be included in the schedule for punishing a terrorist act. |
| Appellant’s submission that the incident was not on the last day of Navaratri. | Not directly addressed. The court focused on the broader issue of whether a prima facie case was made out, rather than the specifics of the date. |
| Respondent’s submission that the appellant was the President of PFI and involved in the conspiracy. | Accepted. The court noted the appellant’s position in PFI and the frequent telephonic conversations between the accused persons. |
| Respondent’s submission that the murder was a brutal attack intended to create fear. | Accepted. The court highlighted the nature of the attack and its potential impact on the public. |
| Respondent’s submission that there was evidence of indoctrination and conspiracy. | Accepted. The court noted the evidence of indoctrination classes organized by the appellant and the confession of Accused No. 4. |
How each authority was viewed by the Court?
- ✓ Union of India vs. Prafulla Kumar Samal & Ors. [1979(3) SCC 4]*: The Court relied on this case to emphasize that a judge must exercise judicial mind to determine if a case for trial has been made out, and is not a mere post office to frame charges.
- ✓ Sajjan Kumar vs. Central Bureau of Investigation [2010(9) SCC 368]*: The Court used this case to reiterate that the court has the power to sift evidence for limited purpose of finding out whether a prima facie case is made out, and can frame charges if there is grave suspicion.
- ✓ State vs. S. Selvi and Ors. [2018(13) SCC 455]*: The Court followed this authority to further explain the principles of considering discharge applications under Section 227 CrPC.
- ✓ Vikram Johar vs. State of Uttar Pradesh and Ors. [2019(6) SCALE 794]*: The Court followed this authority to further explain the principles of considering discharge applications under Section 227 CrPC.
What weighed in the mind of the Court?
The Supreme Court was primarily influenced by the evidence presented in the charge sheet, which indicated a prima facie case of conspiracy against the appellant. The Court noted that the appellant was the President of the Bengaluru unit of PFI, and there were frequent telephonic conversations between him and other accused persons before and after the incident. The court also considered the evidence of indoctrination classes and the confession of Accused no. 4.
| Reason | Percentage |
|---|---|
| Appellant’s position as President of PFI | 25% |
| Frequent telephonic conversations with other accused | 30% |
| Evidence of indoctrination classes | 20% |
| Confession of Accused No. 4 | 25% |
| Category | Percentage |
|---|---|
| Fact | 60% |
| Law | 40% |
The Court’s decision was based on a combination of factual evidence and legal interpretation, with a slightly higher emphasis on the factual aspects of the case.
The Court rejected the appellant’s arguments that the charges were based on mere suspicion, stating that the material on record indicated a prima facie case of conspiracy. The Court also clarified that the UAP Act was applicable in this case, even though the accused were not members of a banned terrorist organization.
The Supreme Court stated, “The words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.”
The Court further noted, “At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.”
The Court also observed, “If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.”
Key Takeaways
- ✓ At the stage of framing charges, the court must exercise its judicial mind to determine whether a prima facie case exists, and is not a mere post office for the prosecution.
- ✓ The court can frame charges if there is grave suspicion against the accused, even if all elements of the offense are not fully established at this stage.
- ✓ The Unlawful Activities (Prevention) Act, 1967, can be invoked even if the accused is not a member of a banned terrorist organization, as long as the act falls under the definition of a terrorist act.
- ✓ The judgment clarifies that the court’s role at the stage of framing charges is to sift through the evidence to determine if there is sufficient ground to proceed with trial, not to conduct a mini-trial.
Directions
The Supreme Court clarified that its observations were only for the purpose of disposing of the appeal and should not prejudice the rights of the parties during the trial. The trial court was directed to proceed with the trial independently, in accordance with the law, without being influenced by the observations made by the Supreme Court.
Specific Amendments Analysis
Not applicable in this case.
Development of Law
The ratio decidendi of the case is that, at the stage of framing charges under Section 227 of the Code of Criminal Procedure, 1973, the court must exercise its judicial mind to determine whether a prima facie case exists based on the material on record. The court can frame charges if there is grave suspicion against the accused, even if all elements of the offense are not fully established at this stage. The court also clarified that the Unlawful Activities (Prevention) Act, 1967, can be invoked even if the accused is not a member of a banned terrorist organization, as long as the act falls under the definition of a terrorist act. There is no change in the previous positions of law.
Conclusion
The Supreme Court dismissed the appeal filed by Asim Shariff, upholding the High Court’s decision to frame charges against him. The Court found that there was sufficient material on record to indicate a prima facie case of conspiracy and involvement in terrorist activities. The judgment reinforces the principles that the court must exercise its judicial mind when framing charges and that the UAP Act can be applied to individuals involved in terrorist acts, even if they are not members of a banned organization.